The High Court has thrown out a petition accusing five teachers and a matron at a Nairobi girls' school of physically and sexually abusing students during investigations into alleged same-sex relationship.
The court ruled that police inquiries into the claims must first run their course, adding that the learners' parents sued prematurely.
The case was filed at the Constitutional and Human Rights court by two mothers on behalf of their daughters.
The two learners alleged school staff subjected them to beatings, humiliation, stripping and forced confessions over allegations of same-sex conduct.
But the court held that although the allegations raised serious constitutional questions, it should refrain from intervening while criminal investigations and related processes arising from the same events remain unresolved.
The ruling deals a setback to the two families' effort to secure constitutional remedies over alleged violations of the girls' rights, but leaves open the possibility of future legal action once investigations are completed.
Questioned and 'forced to confess'
The two learners alleged school staff subjected them to beatings, humiliation, stripping and forced confessions over allegations of same-sex conduct.
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The petition stemmed from events in June 2023 when school administrators accused several students of engaging in same-sex relationships.
According to court documents, one of the girls was summoned to a room dubbed "Sick Room" within the school and questioned over the allegations. She claimed she was beaten with a wooden mop handle, slapped and threatened with further violence unless she confessed.
The petition alleged that the interrogation later moved to a dormitory where the student was subjected to hours of questioning and pressured into writing a confession.
The second student alleged that she was similarly questioned, insulted and physically assaulted by teachers and school staff.
She claimed she was mocked over her background and accused of bringing "demons" to the school because of where she came from.
The petition further alleged that she was slapped and beaten with a wooden stick and a metal bar before being compelled to write a confession.
The girl also claimed she was later partially stripped during another interrogation session and subjected to physical examination.
The court heard that one of the teachers further "brutally interrogated her family background including the financial status of her family".
The petition said the students were subsequently suspended and ordered to return with their parents before being readmitted.
Mothers say girls were abused
Kenyatta National Hospital.
Photo credit: File I Nation Media Group
The mothers maintained that the school’s teachers and administrators unjustifiably perpetrated physical, psychological and sexual assault against the minors.
One of the girls later sought treatment at Kenyatta National Hospital and reported the matter to police.
The families argued that the actions amounted to violations of multiple constitutional rights, including protection from torture, cruel and degrading treatment, privacy violations, sexual harassment and discrimination.
Before seeking court intervention over the alleged breach of rights, the mothers had reported the matter to the Teachers Service Commission and at Parklands Police Station.
In response to the petition, the teachers and school officials denied the allegations and asked the court to strike out the case.
They argued that the dispute fell outside the High Court's constitutional jurisdiction and should instead be handled through employment and disciplinary mechanisms involving the Teachers Service Commission.
They also told the court that the complaints had already triggered investigations by the commission.
Court records show the TSC investigated the allegations, issued show-cause letters and interdicted the teachers before conducting disciplinary proceedings.
The officials said they were eventually suspended without pay for three months beginning February 2024.
The court rejected the argument that the case belonged before the Employment and Labour Relations Court division, finding that the dispute centred on alleged violations of minors' constitutional rights rather than an employment relationship.
"The petition concerns constitutional violations allegedly perpetrated against the minors," the court said.
"The minors were not in an employee-employer relationship with the applicants and the dispute does not therefore constitute a labour matter."
However, the court said that its intervention would be premature while criminal investigations arising from the same allegations remain active.
The court noted that the constitutional case was founded on substantially the same facts that had already been subjected to disciplinary proceedings and were also under police investigation.
It noted that the petition had not demonstrated any failure by the police to investigate the matter or allege bad faith on their part.
"It appears the petitioners objective is to bombard the respondents on multiple legal fronts simultaneously, all based on the same underlying facts," it said.
The court held that allowing the constitutional petition to proceed at this stage risked interfering with processes already established under the law to investigate and determine the allegations.
As a result, the court declined to hear the petition and struck it out.
The ruling means the claims remain unresolved, with the spotlight shifting to the outcome of the police investigation into allegations that touch on how schools handle complaints involving students and disciplinary inquiries touching on sexuality.
